There are many different types of investigations. The Media often undertakes its own investigations when reporting on allegations of voter fraud or other electoral problems. NonGovernmental Organizations and national election observers (see National Election Observation) also investigate problems and gather evidence. They then either publicize the problem or give the evidence over to a government prosecutor.
Citizen groups and the media can play an effective role in ensuring integrity issues are investigated, especially if a lack of political will or resources is preventing an official investigation.
For example, upon receipt of a complaint that appears to be valid, the U.S. NGO, the Voter Integrity Project (VIP), will conduct an investigation. 'VIP plans to recruit a national network of retired criminal justice professionals qualified and willing to perform citizen training and lead fraud investigations when needed.'329
These nonofficial investigations, however, must respect the rights and privacy of individuals and not interfere with any ongoing official investigations.
Official investigations
Each country has a system for investigating election-related criminal complaints. This system is usually detailed in its legal and regulatory frameworks. A specific agency, or agencies, are mandated to handle these issues.
In many systems, the official investigative mechanism is the police department which works with the election management body or oversight agency. In other systems, it can be a specific election office. In Canada, for instance, this is handled by the Commissioner of Canada Elections.
In federal systems, the investigative body that will handle the case depends on which law has been broken. For example, in the U.S., there is an office within the Department of Justice for federal election crimes, but individual states handle state-law violations. And the national-level Federal Elections Commission investigates campaign finance law violations.
Official investigations are undertaken with the purpose of determining if a crime has been committed, uncovering the facts surrounding that crime, and whether the facts indicate who is responsible. If the investigation leads to a reasonable assumption of guilt by a particular person or organization, the information is handed over to the prosecution. The prosecuting agency usually determines whether or not the evidence warrants further action, and who should be charged with what crime (see Decision to Prosecute).
Investigating with Integrity
Election related investigations must be done with the same high standards of integrity that are expected of electoral managers and participants. In general, maintaining integrity in an investigation requires:
- Independence. An investigation must be objective and impartial. This is difficult to achieve when political pressure is placed on the investigators to achieve a certain outcome to their investigation. It is easier to maintain objectivity when the investigative agency is not dependent on another agency for direction, resources or personnel.
- Neutrality. The investigative agency, and its investigators, should be neutral. If the agency is politically independent, and the staff are part of the civil service and not political appointees it may be easier for it to remain neutral. Requiring individual investigators to disclose potential conflicts of interest in cases under investigation and ensuring that they do not participate in those investigations can also help in this regard.
In Canada, for example,
to maintain the confidence of the public in the neutrality of the Office of the Commissioner, Special Investigators must not engage in politically partisan activities at the federal level. Special Investigators must not work for or on behalf of any federal political party, candidate for federal office, nor any person, body, agency or institution with partisan political purposes or objectives; nor any federal referendum committees; and must not actively or publicly support or oppose the election of any federal political party or candidate for federal elective office; nor actively or publically support or oppose any option on a federal referendum.330
- Jurisdiction, The jurisdiction of a case is determined primarily by which laws have been broken. The investigative agency must have the authority (jurisdiction) to investigate the case. This can be an issue in a federal system where there are national, regional and local jurisdictions.
- Qualified investigators. Investigators should be trained professionals who know how to investigate, how to conduct an interview, how to collect evidence so that it is protected and admissible in a court, and how to protect the rights of witnesses. Otherwise the investigation could be inadequate or the integrity of the investigation compromised.
- Good procedures. Developing effective standard operating procedures for investigations, including the receipt and handling of complaints, collection and protection of evidence, the rights of witnesses and suspects, and the analysis of evidence can avoid many of integrity problems detailed in this section.
- Respect for the political and civil rights of witnesses and suspects (see Rights of Individuals in Investigations, and Rights of the Accused). This is an essential integrity principle;
- Timing. The timing of an investigation can have important integrity consequences. Initiated in the middle of an election campaign, it can be used as political ammunition by some candidates. Not initiating an investigation when warranted could hurt the integrity of the process. The consensus seems to be that the investigation should be done timely enough so that evidence and witnesses are still available, but at the same time, does not interrupt the electoral process.
As explained by Craig Donsanto, from the U.S. Department of Justice: 'Most voting fraud investigations require that individual voters be interviewed concerning the circumstances under which they voted or didn't vote... such interviews should generally not be conducted immediately prior to an election or while voting is taking place. This is because having federal agents interview citizens about the circumstances under which they voted (or did not vote) can easily 'chill' lawful voting activity by the interviewees, as well as voters similarly situated. This is not an appropriate result.'331
Noninterference in Elections
It is important that an investigation not interfere with the conduct of an election or with the election results. For instance, U.S. investigators are told that:
overt federal investigation of election fraud matters should be held to a bare minimum necessary to preserve evidence and elicit the evaluative facts until the election in which the alleged 'fraud' occurred has been certified. Once a federal criminal investigation is conducted openly in a matter concerning an as yet unresolved election, the investigation will inevitably become a central feature in the election's outcome.332
